Habeas and Intertwined State and Federal Claims

During the Warren Court era, Judge Henry Friendly noted, the US Supreme Court expanded the Bill of Rights into a detailed code of criminal procedure, to which a new chapter is added every year. Not surprisingly, the same issue in a criminal trial may be the subject of a constitutional claim and a provision of the actual code of criminal procedure enacted by the legislature. Does a state court have to separately address the federal constitutional question when it believes its state law covers the ground?

That is the question in the first criminal case to be heard in the US Supreme Court this term, Johnson v. Williams, to be argued Wednesday. The case relates to dismissing jurors who are unwilling to deliberate. That issue is governed by section 1089 of California Penal Code, and of course it also has overtones of the Sixth Amendment right to jury trial.

The California Supreme Court established the rules for dismissing a juror in these circumstances in People v. Cleveland, 25 Cal.4th 466 (2001). That case contains no separate Sixth Amendment analysis, but it relies on cases that discuss the Sixth Amendment aspects of the problem. The court considers the views of some of the federal courts of appeals, notes it is not bound by them, and sets a somewhat different standard. There can be little doubt, taking the opinion as a whole, that the California Supreme Court believes that the Cleveland standard is compatible with the Sixth Amendment, even though some of the lower federal courts might disagree. The Cleveland standard is not contrary to or an unreasonable application of any Supreme Court precedents, which is the standard set by Congress for a lower federal court to overturn a state judgment on the merits.

In the present case, the California Court of Appeal applied Cleveland and affirmed the conviction. Does the court also have to say "and we also reject the Sixth Amendment claim" before the "deference" standard of 28 U.S.C. §2254(d) applies on federal habeas? Judge Reinhardt of the Ninth Circuit, in his never ending quest to evade the strictures of that section, said the lack of such a statement authorized the Ninth Circuit to review the Sixth Amendment claim de novo.

We thought we had settled this in Early v. Packer, 537 U.S. 3, 8 (2002). We will see what kind of reception the Ninth Circuit's opinion gets in oral argument tomorrow.